Finding the Facts - Disciplinary and Harassment Investigation

2/15/2019

Enforcement Guidance: Vicarious Employer Responsibility for Unlawful Harassment by Supervisors

complaint through such a phone line triggers an investigation, the employer should make clear that the person who takes the calls is not a management official and can only answer questions and provide information. An investigation will proceed only if a complaint is made through the internal complaint process or if management otherwise learns about alleged harassment. 68 See, e.g. , Van Zant v. KLM Royal Dutch Airlines , 80 F.3d 708, 715 (2d Cir. 1996) (employer’s response prompt where it began investigation on the day that complaint was made, conducted interviews within two days, and fired the harasser within ten days); Steiner v. Showboat Operating Co. , 25 F.3d 1459, 1464 (9th Cir. 1994) (employer’s response to complaints inadequate despite eventual discharge of harasser where it did not seriously investigate or strongly reprimand supervisor until after plaintiff filed charge with state FEP agency), cert. denied , 513 U.S. 1082 (1995); Saxton v. AT&T , 10 F.3d 526, 535 (7th Cir 1993) (investigation prompt where it was begun one day after complaint and a detailed report was completed two weeks later); Nash v. Electrospace Systems, Inc. 9 F.3d 401, 404 (5th Cir. 1993) (prompt investigation completed within one week); Juarez v. Ameritech Mobile Communications, Inc. , 957 F.2d 317, 319 (7th Cir. 1992) (adequate investigation completed within four days). 69 Management may be reluctant to release information about specific disciplinary measures that it undertakes against the harasser, due to concerns about potential defamation claims by the harasser. However, many courts have recognized that limited disclosures of such information are privileged. For cases addressing defenses to defamation claims arising out of alleged harassment, see Duffy v. Leading Edge Products , 44 F.3d 308, 311 (5th Cir. 1995) (qualified privilege applied to statements accusing plaintiff of harassment ) ; Garziano v. E.I. DuPont de Nemours & Co., 818 F.2d 380 (5th Cir. 1987) (qualified privilege protects employer’s statements in bulletin to employees concerning dismissal of alleged harasser); Stockley v. AT&T , 687 F. Supp. 764 (F. Supp. 764 (E.D.N.Y. 1988) (statements made in course of investigation into sexual harassment charges protected by qualified privilege). 70 Mockler v Multnomah County , 140 F.3d 808, 813 (9th Cir. 1998). 71 In some cases, accused harassers who were subjected to discipline and subsequently exonerated have claimed that the disciplinary action was discriminatory. No discrimination will be found if the employer had a good faith belief that such action was warranted and there is no evidence that it undertook less punitive measures against similarly situated employees outside his or her protected class who were accused of harassment. In such circumstances, the Commission will not find pretext based solely on an after-the-fact conclusion that the disciplinary action was inappropriate. See Waggoner v. City of Garland Tex. , 987 F.2d 1160, 1165 (5th Cir. 1993) (where accused harasser claims that disciplinary action was discriminatory, “[t]he real issue is whether the employer reasonably believed the employee’s allegation [of harassment] and acted on it in good faith, or to the contrary, the employer did not actually believe the co-employee’s allegation but instead used it as a pretext for an otherwise discriminatory dismissal”). 72 See Steiner v. Showboat Operating Co. , 25 F.3d 1459, 1464 (9th Cir. 1994) (employer remedial action for sexual harassment by supervisor inadequate where it twice changed plaintiff’s shift to get her away from supervisor rather than change his shift or work area), cert. denied , 513 U.S. 1082 (1995). 73 See Guess v. Bethlehem Steel Corp. , 913 F.2d 463, 465 (7th Cir. 1990) (“a remedial measure that makes the victim of sexual harassment worse off is ineffective per se ”) . 74 An oral warning or reprimand would be appropriate only if the misconduct was isolated and minor. If an employer relies on oral warnings or reprimands to correct harassment, it will have difficulty proving that it exercised reasonable care to prevent and correct such misconduct. 75 See Varner , 94 F.3d at 1213 (complaint procedure is not effective if it does not require supervisor with knowledge of harassment to report the information to those in position to take appropriate action), cert denied , 117 S. Ct. 946 (1997); accord Wilson v. Tulsa Junior College , 164 F.3d at 541. 76 See Wilson, 164 F.3d at 541 (complaint procedure deficient because it only required supervisors to report “formal” as opposed to “informal” complaints of harassment). 77 See, e.g., Splunge v. Shoney’s, Inc. , 97 F.3d 488, 490 (11th Cir. 1996) (where harassment of plaintiffs was so pervasive that higher management could be deemed to have constructive knowledge of it, employer was obligated to undertake corrective action even though plaintiffs did not register complaints); Fall v. Indiana Univ. Bd. of Trustees , 12 F. Supp.2d 870, 882 (N.D. Ind. 1998) (employer has constructive knowledge of harassment by supervisors where it “was so broad in scope and so permeated the workplace that it must have come to the attention of someone authorized to do something about it”).

https://www.eeoc.gov/policy/docs/harassment.html

20/22